Law Offices
Fennemore Craig
A PROFESSIONAL CORPORATION

FREQUENTLY ASKED
Questions and answers

U.S. PERMANENT RESIDENCE

What is the U.S. permanent residency (the “green card” or immigrant visa) process and how long does it take?
What is the difference between RIR (fast track) and traditional processing of labor certification applications?
What is a “preference category?”
What are the requirements for EB1? a. Classification as an individual of extraordinary ability (EB1-1) b. Classification as an outstanding researcher (EB1-2) c. Classification as a multinational manager or executive (EB1-3)
Will I have travel restrictions during the adjustment of status period?
Can I include my spouse and dependent children when processing my green card?
What documents do I need to provide for the AOS process?
What documents do I need for consular processing?
MISCELLANEOUS
When can I receive a Social Security Number?
What is the "green card lottery?"
When can I apply for U.S. citizenship?
If I choose to leave my current employer, will this affect my work authorization status or the green card process?
What if I am not married but I have a partner or "significant other"?
After I receive U.S. permanent residence, what happens if I am transferred abroad?
U.S. PERMANENT RESIDENCE

What is the U.S. permanent residency (the “green card” or immigrant visa) process and how long does it take?

The permanent residency process will vary in length, depending on which method is appropriate for your case and where you work (which state). Of course, always remember that government processing times are extremely inconsistent and subject to change. The entire process has three major steps.

Step 1: Labor Certification – Your employer must demonstrate to the Department of Labor that it is unable to locate qualified or available U.S. workers for your position in the geographic area where you work. This process is currently taking eighteen to twenty-four months.

Step 2: I-140 (Immigrant Visa Petition) – Your employer must then file a petition with the USCIS and demonstrate that you qualify for the position described in the labor certification. This may take three to twelve months.

Step 3: I-485 (Adjustment of Status) – This is the application filed by you and your family members to “adjust” your status from temporary worker to permanent resident. This step currently takes twelve to twenty-four months.

Steps 2 and 3 can be filed simultaneously; the processing times currently vary from twenty-four to thirty-six months.

Some permanent residence categories do not require labor certification: intracompany transferee managers and executives, “outstanding” researchers, persons of “extraordinary” ability, and persons of “exceptional” ability whose work is in the “national interest.”

What is the difference between RIR (fast track) and traditional processing of labor certification applications?

Reduction in Recruitment (RIR) is a process in which the employer will not have to recruit for your specific position. Instead, the employer must show the Department of Labor that the company has engaged in a pattern of recruitment for similar positions over the six-month period immediately prior to filing the application for labor certification. Companies can establish a pattern of recruitment by submitting copies of print advertisements, Internet listings, headhunter information, and other relevant recruitment efforts.

RIR is Fennemore Craig’s preferred labor certification processing method, but only for occupations that are clearly in short supply. Current occupational shortages are determined in geographic area configurations, and thus vary from time to time and place to place. At one time, the RIR process was much quicker than “regular” processing, but that is no longer the case.

What is a “preference category?”

Congress has designated two groups, “family-based” and “employment-based,” which have preference in immigrating to the U.S. Employment-based applications are divided into five preference categories. Each preference category is subject to an annual numerical limitation, or quota, of immigrant (“green card”) visas.

The first employment-based preferences (EB1) do not require labor certification. EB-1 is set aside for priority workers falling into one of the following sub-categories:

• individuals demonstrating “extraordinary ability” in the arts, sciences, education, business, and athletics (EB1-1)

• outstanding researchers and university professors (EB1-2)

• multinational managers and executives transferred to the U.S. from a foreign affiliate, subsidiary, branch or parent of the U.S. office (EB1-3)

The second employment-based preferences (EB2), which usually require labor certification, are set aside for the following:

• individuals who possess “exceptional ability” in the sciences, arts and business who are entering the U.S. to fill a position which requires an individual of exceptional ability (EB2-1).

• individuals who possess an advanced degree (defined as any U.S. academic or professional degree above a bachelor's degree level OR a bachelor's degree and at least five years of progressive experience) who are entering the U.S. to fill a position that requires an advanced degree (EB2-2).

Labor certification is required for the second employment-based preference category, unless it can be demonstrated that your entry will benefit the U.S. national interest to such a high degree that it is not in the interest of the country to recruit U.S. workers for the position. The standard of proof required to demonstrate "national interest" is difficult to meet.

The third employment-based preferences (EB3), which always require labor certification, are set aside for the following:

• "professionals" with a bachelor's degree, meaning an actual U.S. degree or foreign degree equivalent (EB3-1).

• skilled workers, filling positions requiring at least 2 years of training and experience (EB3-2).

• unskilled workers, filling positions that require less than 2 years of experience (EB3-3).

Which preference category is appropriate for you is dependent upon your qualifications and upon the duties and requirements of the position.

What are the requirements for EB1?

a. Classification as an individual of extraordinary ability (EB1-1)

To qualify as an individual of extraordinary ability in the sciences, arts, education, business or athletics, you must be able to document sustained national or international acclaim and that you are coming to the U.S. to continue work in the area of your extraordinary ability, by providing evidence of:

1) Receipt of a major internationally recognized award, such as the Nobel Prize; OR

2) At least three of the following requirements:

• Documentation of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor (selection criteria must be provided);

• Documentation of membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields (selection criteria must be provided);

• Published material about you in professional or major trade publications or other major trade media, relating to your work;

• Evidence of your participation, either individually or on a panel, as a judge of the work of others in your field or an allied field;

• Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in your field;

• Evidence of your authorship of scholarly articles in your field, in professional or major trade publications or other major media;

• Evidence that you have been employed in a leading or critical role for organizations or establishments that have a distinguished reputation; or

• Evidence that you have commanded a high salary or other significantly high remuneration for services, in relation to others in your field.

The USCIS strongly encourages submission of reference letters from credible sources that evidence that you have risen to the very top of your field, and which describe your abilities and accomplishments in your field.

It is also helpful for your employer to provide a description of the nature and importance of the duties that you are performing and why the position requires the services of an individual possessing extraordinary ability.

b. Classification as an outstanding researcher (EB1-2)

In order to establish that you qualify as an outstanding researcher or professor, the USCIS requires evidence of at least two of the following:

• Documentation of receipt of major prizes or awards for outstanding achievement in the academic field (selection criteria must be provided);

• Documentation of membership in associations in the academic field which require outstanding achievements of their members (selection criteria must be provided);

• Published material in professional publications written by others about your work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation;

• Evidence of your participation, either individually or on a panel, as the judge of the work of others in the same or allied academic field;

• Evidence of your original scientific or scholarly research contributions to the academic field; or

• Evidence of your authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

In addition, you will need to establish that you possess at least three years of research and/or teaching experience. This experience can include time spent towards an advanced degree so long as you acquired the degree, and if the research conducted while working toward the degree has been recognized within the academic field as "outstanding." Letters from academic advisors, former employers or from credible sources that can confirm your contributions to your field should be provided.

c. Classification as a multinational manager or executive (EB1-3)

In order to qualify as a multinational manager or executive, you must document employment with the petitioning employer or an affiliate company abroad for at least one full year in the three years immediately prior to your employment in the U.S., in a managerial or executive capacity. The permanent position with the U.S. employer must also be at a managerial or executive level.

This immigrant visa classification is similar to the L-1A nonimmigrant visa category, except that the immigrant (permanent residence) option requires that the employee have filled a managerial or executive role with the company abroad as well as in the U.S. The USCIS definition of "manager" includes the traditional managerial responsibilities (e.g. supervision of professional personnel, authority over personnel decisions, responsibility for budget and planning aspects of operations, etc.) The USCIS regulations also take into consideration the role of "functional" managers who manage an essential function within the organization and exercise direction over the day-to-day operations of the activities or function for which they have responsibility.

Will I have travel restrictions during the adjustment of status period?

During the first two steps of the immigrant visa process (labor certification and immigrant visa petition) an H or L nonimmigrant may continue to travel on a valid H or L nonimmigrant visa.

During "adjustment of status" (AOS) processing in the U.S., H-1B or L-1 employees (and their derivative family members) may continue to travel on their valid H or L visa OR may travel pursuant to USCIS travel permission [“advance parole”].

While the AOS is pending, an H-1B or L-1 nonimmigrant may obtain an Employment Authorization Document (EAD) to continue to work at their sponsoring employer after the expiration of his or her H or L status, or to work at an employer other than the sponsoring employer. (Note, however, that you must maintain your intention to take the permanent position described in the labor certification application. A permanent resident application does not become "portable" to another employer until six months after filing the AOS, and only if the I-140 is also approved.)

While the AOS is pending, family members may also work after being issued an EAD.

Individuals who work on an EAD for another employer and any dependent family members in H-4 or L-2 status who work after being issued an EAD must obtain an advance parole for travel outside the U.S.

E, TN, or O visa employees (and their derivative family members) who file AOS applications may travel ONLY pursuant to a grant of advance parole; they may not travel on their nonimmigrant visas. The advance paroles must be obtained before leaving the U.S. The USCIS considers leaving the U.S. without an advance parole as abandonment of the AOS.

Processing time for advance paroles is approximately three to four months. Thus, there is a period after filing the AOS application during which AOS applicants previously in E, TN, or O status may not travel.

While the AOS is pending, the previous E, TN, or O nonimmigrant and their derivative family members (all of them are now considered "adjustment applicants") may obtain EADs.

Can I include my spouse and dependent children when processing my green card?

Yes, your spouse and unmarried children under 21 can be included with you. If you have a child 18 years of age or older, you should notify Fennemore Craig immediately so that steps may be taken to ensure final processing prior to the child turning 21.

What documents do I need to provide for the AOS process?

You will need to provide the following for yourself and each family member:

• Birth Certificate: This must be a "long form", with names of BOTH parents of each applicant, with a certified English translation. (See additional information in 12 below regarding birth certificates.)

• Marriage certificate, if applicable. PLEASE NOTE: If you are not married at this time, but intend to get married in the next few years, you should marry BEFORE you become a U.S. permanent resident, so that your spouse may immigrate with you. U.S. permanent residents do NOT have the immediate right to immigrate a foreign national spouse (it currently takes approximately five years to immigrate the spouse of a U.S. permanent resident.).

• Divorce decree or death certificate for previous marriages, if applicable.

• Medical examination documents completed by a USCIS-approved physician, including evidence of certain vaccinations (Mumps, Measles, Rubella, Polio, Tetanus and diphtheria toxoids, Pertussis, Influenza type B, Hepatitis B, Varicella (chickenpox), Haemophilus influenza type B, and Pneurnococcal). If you have not previously received these vaccinations or cannot provide evidence of your immunization history, please consult your personal physician at this time.

• Copies of all previous U.S. immigration documents covering all periods of stay in the U.S. This includes but is not limited to: Forms I-20 if you held F-1 status, EAD cards, Forms IAP-66, DS-2019 if you held J-1 status, previous nonimmigrant petition approval notices, and copies of I-94 cards.

• Complete copy of your current passport including your current I-94.

• 8 USCIS-style photographs.

• Complete criminal records, if applicable. Please contact Fennemore Craig immediately if you have ever been arrested, indicted or convicted in any country, as this may have an effect on your eligibility for permanent residence.

What documents do I need for consular processing?

You will need to have in your possession the following original documents for yourself and each family member:

• Passport

• Birth certificate

• 4 passport-type color photographs

• Vaccination record if available

• Police certificates covering each local area in your home country where you have resided for more than six months since reaching the age of sixteen. In addition, you must have Police Certificates from each country (other than your home country or the U.S.) where you have resided for more than one year since reaching the age of sixteen. Finally, you must have a Police Certificate from ANY country in which you were ever arrested.

• Marriage certificate (and divorce decree or death certificates for any previous marriages for yourself and your spouse, if applicable)

• Military record, if applicable.

An acceptable birth certificate must be issued by a government entity and contain the following information:

a. your name; b. your birth date; c. your place of birth (city and country); and d. names of both parents.

In cases where a birth certificate is unavailable or contains insufficient information regarding the birth or the parents, a sworn affidavit executed by either parent, if living, or other close relatives older than the applicant, may be submitted. The affidavit should set forth:

1) the relationship between the deponent and the applicant; 2) how well the deponent knows the applicant; 3) the date and place of the applicant's birth; 4) the names of both parents; and 5) any other related facts.

The affidavit must be accompanied by a document from a competent governmental authority confirming that a birth certificate does not exist, or no longer exists. Note that the affidavit alone is not a conclusive record of birth.

If you and your family process your permanent residence application through consular processing abroad rather than adjustment of status in the U.S., your spouse and children will not have work authorization until their permanent resident visas are issued by the U.S. consulate and they enter the U.S., unless they are eligible for L-2, E-1 or E-2 derivative work authorization.

MISCELLANEOUS

When can I receive a Social Security Number?

If you do not already have a social security number, you can apply for one at the U.S. Social Security Administration (SSA) office. If you hold nonimmigrant visa status that allows you to work in the U.S. (e.g., H-1B), the SSA will issue a social security card which indicates that you are authorized to work with USCIS authorization only. Your dependents will not be issued SSNs until they immigrate or obtain temporary work authorization, but they can apply for a federal identification number (ITIN) at a local IRS office for the period they are in non-immigrant status. The ITIN may not be used to demonstrate work authorization.

For more information about applying for a social security number and office locations, you can visit the SSA website at “www.ssa.gov.” You should be aware that the processing time for an SSN is three to five weeks. During that time period, you do have work authorization.

What is the "green card lottery?"

Each year the Department of State conducts a "diversity visa lottery" for nationals of certain countries who wish to become permanent residents. 50,000 immigrant visas are available annually to persons from countries with low rates of immigration to the United States. The application process occurs in October. The Department of State website contains information about the process, including a list of eligible countries.

When can I apply for U.S. citizenship?

Individuals who satisfy the residence, physical presence and other requirements are eligible to apply for U.S. citizenship after they have been permanent residents (green card holders) for five years. If you are married to a U.S. citizen, you are eligible to apply for citizenship after three years of marriage as long as residence, physical presence and other requirements are met.

An applicant for U.S. citizenship must demonstrate good moral character, English literacy, and knowledge of U.S. history. In addition, there are U.S. residence and physical presence requirements which must be met. In brief, the applicant for naturalization must have been physically present in the U.S. for at least half of the qualifying period (5 or 3 years as described above) and must have maintained his or her primary place of abode in the U.S. for the entire qualifying period (e.g. extended absences from the U.S. may interrupt the qualifying period).

If I choose to leave my current employer, will this affect my work authorization status or the green card process?

The permanent residence process requires that you intend to work with the petitioning employer on an indefinite at-will basis. Nonetheless, a permanent resident application can become "portable" to another employer six months after filing the adjustment of status application, if the new employment is “substantially similar” to the labor certification/visa petition employment.

What if I am not married but I have a partner or "significant other"?

For the permanent resident process, only legal spouses are eligible for derivative immigrant visas.

After I receive U.S. permanent residence, what happens if I am transferred abroad?

In order to maintain your U.S. permanent residence, you must continuously hold an intent to make your primary residence in the U.S. The strongest evidence of your intent is a re-entry permit. Contact Fennemore Craig for more information about this process.

USCIS examines a number of criteria as evidence of your intention to maintain U.S. permanent residence. To demonstrate the requisite continued maintenance of ties to the U.S., you are strongly advised to maintain a U.S. address (even if it is the home of a relative or friend); property (i.e., a person assigned abroad should consider renting out their U.S. property, rather than selling it); U.S. bank accounts; U.S. credit cards; a current U.S. driver's license, among others. In addition, you must continue to file U.S. tax returns as a U.S. resident and claim your worldwide income (even if not required to pay income tax based on tax treaties and foreign tax credits); failure to follow this rule can lead to loss of permanent resident status.

Finally, you should never remain continuously outside the U.S. for longer than 180 days.